Futures

Bava Metzia (5:7) | Yisrael Bankier | 2 months ago

The fifth perek of Bava Metzia deals with the prohibition of
charging interest - ribbit. The Mishnayot also deal with the
rabbinic extensions of the prohibition where ribbit may arise in the
context of a business deal rather than a direct loan. One such case is
futures. The Mishnah (5:7) explains that one is not allowed to pay
another to supply them with a quantity of produce at a future date. The
concern is that if the price of the produce increases, then the supplier
will be providing that produce of a value greater than the sum of money
he was given at the outset. The outcome has the appearance of interest.
The Mishnah however explains that if the going price for that produce
has been released, then the arrangement is permitted. The Mishnah
explains that the reason it is permitted is that "even though he might
not have the produce, another supplier would". How do we understand the
Mishnah?

The Gemara (63b) cites Raba and Rav Yosef that explain that the
purchaser can argue that he gained no benefit from the supplier despite
the subsequent price increase. He could argue that had he not given the
supplier the money, he could have purchased the produce himself from the
outset. The Nimukei Yosef appears to understand the Mishnah
according to the rationale of Raba and Rav Yosef as he explains that
the purchaser could have bought the produce from someone else, stored it
and benefitted from the price increase.

The Tosfot Yom Tov however cites the Tosfot (62b) who explain the
Mishnah differently. They understand that Mishnah is referring to
the supplier and not the purchase. That is even if the supplier does not
have the stock at the time of the deal, the supplier could have sourced
it from someone else. It is therefore considered as if the supplier had
the produce in stock at the time of the agreement. With that rationale
in mind, the issue of ribbit is avoided since the agreement is a
straightforward business transaction. The Tosfot continue, that even
though the purchaser did not acquire the produce through meshicha
(drawing the produce towards them) the issue of ribbit would still be
avoided. This is because the supplier would not be able to retract due
to the mi shepara (curse incurred by one that retracts after the money
has been paid). Consequently, the Tosfot explain that it is considered
as if the produce is already owned by the purchaser and any increase is
considered as if it occurred while in his possession. The Tosfot Yom
Tov stresses that the issue of ribbit can only be avoided if the
produce is already considered as if it is in the possession of the
purchaser from the outset.

Ostensibly the above rationale should apply beyond the laws of ribbit
as well. Note that the Tosfot understand that if the supplier wanted
to retract then a mi shepara would apply. Indeed, the Rambam
(Mechira 22:3) also rules that if someone retracts in such a business
arrangement that was made after the prices were public, he would receive
a mi shepara. The Maggid Mishnah explains that the Rambam is based
on our Mishnayot.

The Kesef Mishnah does not disagree with the Rambam's ruling.
Nevertheless, he argues that the laws in our perek apply to laws of
ribbit only and no conclusions can be drawn to laws of acquisitions.
(The Kesef Mishnah finds the basis for the Rambam's ruling
elsewhere.) Why so?

The Tosfot Yom Tov explains that the Kesef Mishnah's logic is in
line with the Raavad's. One must recall that ribbit through a
business transaction is prohibited rabbinically. The Chachamim permit
the arrangement under these conditions not because if the prices have
been released that the acquisition is considered complete, but simply
because the Chachamim can build leniencies into the laws that they
introduced. Consequently, since this ruling may be a result of a
leniency no conclusion should be drawn to the laws of acquisitions in
general.

The Tosfot Yom Tov however notes that since both the Tosfot and
Rashi bring the mi shepara as a basis for permitting this
arrangement, it suggest that the laws – ribbit and acquisition – are
connected. Consequently, he argues that the Kesef Mishnah should not
have been so quick to reject the Maggid Mishnah's explanation of the
Rambam.